KARACHI: A two-member bench of the Sindh High Court (SHC) set aside impugned judgment of the customs appellate tribunal and allowed reference applications filed by the Collector of Customs against M/s. Time Press (Pvt) Ltd, M/s. Pak Pap (Pvt) Ltd and others.
On 24 March 2021, Justice Muhammad Junaid Ghaffar and Justice Agha Faisal announced a detailed judgement on several reference applications in which Applicant has impugned order dated 16.06.2015, passed by the Customs Appellate Tribunal, Karachi in Customs Appeal No. K-210 of 2015 and in all other connected matters.
During the hearing, learned Counsel for the Applicant has read out the order of the Tribunal and has argued that the Tribunal has failed to appreciate the facts as well as law inasmuch as the final assessment were made within time, whereas, the respondents had filed some Petitions before the Islamabad High Court which were ultimately disposed of with directions to made assessments, and, therefore, no case was made out on behalf of the respondents.
According to him the Values were determined pursuant to a Valuation Ruling; hence, no illegality was committed by the department in passing the assessment orders. In the alternative he has also placed reliance on judgment dated 11.12.2014 passed in W.P.No. 1760/2014 and other connected matters by the same bench of Islamabad High Court, whereby, the petitions were dismissed for lack of territorial jurisdiction.
On the other hand, learned Counsel for the respondents has supported the impugned judgment and submits that the department had released the goods provisionally under section 81 of the Customs Act, 1969, pursuant to the directions of Islamabad High Court, whereas, final assessment was time-barred and therefore, the Tribunal has correctly concluded that the final assessments were beyond the limitation period as provided under section 81 of the Customs Act, 1969. He has further argued that during pendency of the petitions another Valuation Ruling was issued which was to be applied; therefore, the Reference Applications are liable to be dismissed.
After the arguments, court observed in its verdict that “we have heard both the learned Counsel and on perusal of the entire record and the discussion hereinabove, it appears that the Tribunal does not appear to be justified in reaching the conclusion that the provisional assessments were not finalized within the period provided in Section 81 ibid, and the final assessments are time barred.
In fact, it was never a case of a provisional assessment stricto sensu in terms of section 81 of the Act. When a Court issues certain directions to release the goods provisionally against some security, it is not an assessment under section 81 of the Act, by mere use of the words “provisionally”.
It is an order of the Court exercising jurisdiction under Article 199 of the Constitution in a writ petition and not under s.81 ibid. And such provisional arrangements are always subject to the final decision of the Court. Provision of section 81 of the Customs Act, 1969 requiring finalization of provisional assessment of the duty within six month was not attracted in these cases as the goods were released on the provisional assessment made in pursuance of an interim order passed by learned High Court SCRA 1381 to 1386 of 2015 Page 6 of 6 pending decision.
Therefore, the Tribunal’s conclusion that the provisional assessments in these cases were never finalized in time cannot be sustained. It is an admitted position that the learned Islamabad High Court had not touched merits of the impugned Valuation Ruling while disposing off the petition(s); therefore, on mere presumption and taking shelter in respect of limitation period and its purported non-adherence by the department as alleged, cannot be taken into account to non-suit the department.
In our view, the provision of section 81 ibid and its limitation was never attracted in the facts and circumstances of the case, whereas, nothing has been agitated as to the validity of the impugned Valuation Ruling. Since we are of the opinion that the issue was not of a provisional assessment under s.81 ibid, and the limitation provided therein would not apply; therefore, we have not attended to the issue of territorial jurisdiction of the learned Islamabad High Court in view of the submission made by the learned Counsel for the Applicant by placing reliance on the judgment dated 11.12.2014 passed in W.P.No. 1760/2014 and other connected matters, whereby, the petitions were dismissed for lack of territorial jurisdiction.
In view of hereinabove facts and circumstances of the case it appears that the Tribunal has not appreciated the facts and law in coming to the conclusion that this was a case of provisional assessment strictly under section 81 of the Customs Act 1969. Accordingly, question No.(i) is answered in affirmative in favour of the Applicant and against the respondent, whereas, the other questions need not to be answered. The impugned judgment of the Tribunal is set-aside and the Reference Applications are allowed.